Synopsis

Court of Claims Act § 10(6) motion to file a claim late denied as
underlying statute of limitations has expired.

Case Information

UID:

2009-040-067

Claimant(s):

MICHAEL CAGLE

Claimant short
name:

CAGLE

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

NONE

Motion number(s):

M-76729

Cross-motion
number(s):

Judge:

CHRISTOPHER J. McCARTHY

Claimant’s
attorney:

Michael Cagle, Pro Se

Defendant’s
attorney:

ANDREW M. CUOMOAttorney General of the State of
New YorkBy: Glenn C. King, Esq., AAG

Third-party
defendant’s attorney:

Signature date:

August 17, 2009

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

For the reasons set forth below, the application of Movant, Michael Cagle, to
serve and file a late Claim pursuant to Court of Claims Act § 10(6) is
denied.

The proposed Claim, attached to the motion papers, alleges that on July 28,
2006 at Upstate Correctional Facility located in Malone, New York (Upstate)
Claimant was assaulted by facility staff members.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s
discretion to allow the filing of a late claim if the applicable statute of
limitations set forth in Article 2 of the CPLR has not expired. Thus, the first
issue for determination upon any late claim motion is whether the application is
timely. The proposed Claim asserts a cause of action for the intentional tort
of assault (CPLR § 215[3], a one-year statute of limitations). That cause
of action accrued on the date of the alleged assault, July 28, 2006. Thus, the
statute of limitations has expired. As a movant is permitted to file a late
Claim only if the underlying cause of action is not time barred (Arbor Hill
Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d
675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d
871[3d Dept 1993], lv denied 82 NY2d 661 [1993]), Movant’s motion
for permission to file a late claim regarding this assault is denied.

August 17, 2009Albany,
New York

HON. CHRISTOPHER J. MCCARTHYJudge of the Court of
Claims

The following papers were read and considered by the Court on Movant’s
motion for permission to serve and file a claim late: